Dhanesh Prokash Pal vs Lalit Mohan Ghosh and Another

Lahiri, J.—This is a Rule under sec. 115 of the CPC and it was obtained by the Plaintiff in a proceeding for ejecting the Defendants Opposite Parties from premises No. 114|1, Cornwallis Street, which was let out to the Opposite Parties at a rental of Rs. 110 per month. In the plaint, the Plaintiff based his claim for ejectment on the ground of ipso facto determination of the tenancy alleging that the Defendants had made default in payment of rent for the months of Bhadra. Aswin and Kartick, 1356 B. S. This claim was based upon the provisions of sec. 12 (3) of the West Bengal Premises Rent Control Act of 1948. The tenants Defendants contested the claim of the Plaintiff by filing two separate written statements. During the pendency of the suit, the West Bengal Premises Rent Control Act (Act XVII of 1950) came into operation. The tenants Defendants made an application under sub-sec. (5) of sec. 18 of the West Bengal Premises Rent Control Act of 1950 to get relief against the claim for ejectment. This prayer of the tenants Defendants was allowed by the learned Presidency Small Cause Court Judee by a judgment, dated the 7th June. 1950. and the Plaintiff''s prayer for abetment was dismissed. Against this order, the Plaintiff has obtained the present Rule.

Mr. Ghose appearing in support of the Rule has argued that sub-sec. (5) of sec. 18 does not apply to a proceeding for ejectment under sec. 41 of the Presidency Small Cause Courts Act. The point raised is that sub-sec. (5) of sec. 18 is confined only to suits and does not apply to proceedings for recovery of possession. It is to be noticed that sub-sec. (5) of sec. 18 authorises the Court to grant relief against ejectment in pending suits whereas sub-sec. (1) of the same section gives a Court power to vacate a "decree" where such a decree was passed before the coming into operation of the Act of 1950. In the case of Rai Bahadur Atulya Dhan Banerji v. Sudhangshu Bhusan Datta Since reported: 55 C.W.N. 348 (1951), a Division Bench of this Court held that the word "decree" occurring in sub-sec. (1) of sec. 18 is wide enough to include an order for possession made under sec. 43 of the Presidency Small Cause Courts Act although the word "order" is not to be found in sub-sec. (1). In that case, the Division Bench considered the case of Amulya Ratan v. Meghmala 53 C.W.N. 474 (1949) and came to the conclusion that that decision was no authority for determination of the question which arose under sec. 18 of the Act of 1950. I am inclined to think that it follows from the reasons given in the decision of the Division Bench in Civil Revision Case No. 1358 of 1950 [Rai Bahadur Atulya Dhan Banerji v. Sudhangshu Bhusan Datta Since reported: 55 C. W. N. 348 (1951)] that the word "suit" occurring in sub-sec. (5) of sec. 18 includes a proceeding for recovery of possession under sec. 41 of the Presidency Small Cause Courts Act. A suit for recovery of possession terminates in a decree whereas a proceeding for recovery of possession under the Presidency Small Cause Courts Act terminates in an order for possession. If the word "decree" in sub-sec. (1) includes an order for possesion I have hardly any doubt in my mind that the word "suit" in sub-sec. (5) includes a proceeding for recovery of possession. Consequently, I hold that the word "suit" occurring in sub-sec. (5) of sec. 18 includes a proceeding for recovery of possession under sec. 41 of the Presidency Small Cause Courts Act. The first point raised by Mr. Ghose, therefore, fails.

Mr. Ghose has argued in the second place that the tenant Opposite Parties forfeited their right to the tenancy under-sec 12, proviso, of the Act of 1950 because during the pendency of the suit one of the two tenants who held the tenancy assigned hit interest to the other tenant. With regard to this point, 1 desire to observe that this point was not pleaded in the plaint and there is nothing in the records of this case to show that it was ever raised in the Court below. If the Plaintiff Petitioner desires to get any relief against the tenants on this ground, he may start a fresh proceeding on this ground, if he is so advised. Upon the record, as it stands, 1 cannot allow the Plaintiff Petitioner to raise this plea in the present prroceeding. The present proceeding was started solely on the ground of ipso facto determination of the tenancy and no other point was raised by the Plaintiff in his plaint. In this view of the matter, I am not disposed to allow the Plaintiff to raise this new plea in revision. The second point raised by Mr. Ghose also fails.

This Rule is accordingly discharged but in the circumstances of the case 1 make no order as to costs. The Plaintiff Petitioner will be allowed to withdraw the money which is lying in deposit in the Court below without prejudice to any future proceeding which he may bring to eject the tenants.